Private deals are closing; the DOL benchmark remains missing

The Department of Labor's test is easy to state. A plan fiduciary can offer private assets in a 401(k) only when there is a meaningful benchmark to judge them against. There isn't one. The safe harbor rests on a standard the private markets have not met.

Deal volume isn't the problem. PWD's records show Blackstone Real Estate Income Trust announced a $3.3 billion deal with QTS on June 30, 2026. The same trust closed an $852 million deal the same day. Those are exactly the kinds of large private-market transactions that could, in theory, feed a benchmark.

Priority Income Fund follows the same pattern. It closed a deal on August 15, 2026, according to PWD's records, after reporting a $421 million change in assets under management for the period ending December 31, 2025. The fund is active in private assets. What it has not produced, any more than BREIT has, is a series of comparable, transparent performance data points that a plan committee could use.

More deal volume is not what the DOL is asking for. It wants comparability. A public-market benchmark is an index with daily pricing, a long performance history, and a defined universe. A private-asset benchmark would need standardized reporting, frequent valuation, and an independent administrator. Those features do not exist in a form the DOL has accepted. Without them, a plan fiduciary cannot show the selection process was prudent.

The requirement creates a standoff. Private fund sponsors are raising and deploying capital at scale. PWD's records show a $3.3 billion QTS transaction. The same records note an $852 million BREIT close. They also list a $421 million change in assets at Priority Income Fund. None of that activity has coalesced into an investable benchmark. The pieces move. The index does not.

Why hasn't one appeared? Mostly because private real estate and private credit deals are bespoke. Each asset has its own cash flows, risks, and valuation schedule. A benchmark would need sponsors to disclose performance in a standardized, audited format—fees, valuation methods, returns on individual assets. The information can exist. Assembling it would require a level of transparency the industry hasn't volunteered.

The safe harbor was drafted as a defense for plan fiduciaries. With a meaningful benchmark, a committee can argue that a private fund matched or beat a recognized yardstick. Without it, a committee asked about a complex product has no way to show the decision was measured. The rule remains stalled for that reason, not because retirement savers don't want the option.

The same deals that could contribute to a benchmark instead remain isolated data points. BREIT's QTS transaction is large enough to matter to retirement accounts if the vehicle were allowed in plan lineups. It stays outside the 401(k) menu, in part because the benchmark condition hasn't been met. The deal has economic substance. For the 401(k) menu, it has almost no regulatory value.

Priority Income Fund's $421 million change in assets tells a plan sponsor how much money flowed in, not how the underlying assets performed relative to anything else. A benchmark needs returns, volatility, drawdowns, and correlation. AUM changes and deal closes describe activity. They don't offer evidence.

A meaningful private-asset benchmark would need a defined universe, net-of-fee returns, valuations frequent enough for a plan's pricing policy, and an independent governance body. A private real estate benchmark couldn't rely on one sponsor's deals; it would need pooled data from multiple managers. A private credit benchmark faces the same obstacle. The DOL's phrase is deliberately vague, but it cannot mean a single fund's NAV history.

No benchmark submission has arrived, which suggests private managers see more downside in disclosure than upside in defined-contribution access. That's a rational calculation for a sponsor whose current clients are institutions and high-net-worth individuals who don't demand daily pricing. But it costs the retirement system. The DC market holds an enormous pool of long-duration capital, and it remains closed to most private assets.

The safe harbor was supposed to make private assets a standard menu option, not a bespoke arrangement. So far, it hasn't.

The first manager to submit a benchmark proposal to the DOL will set the terms for what comes next. It would need historical performance data, an independent administrator, and a defined universe that doesn't lean on the manager's own funds. That's a tall order for an industry that has never standardized reporting. But it's also the only way to open the gate.

Until then, the safe harbor remains a rule without a reference point. Every BREIT or Priority Income Fund deal that closes without feeding a benchmark makes the absence harder to ignore. Private markets accumulate assets. The DOL waits for evidence. The two haven't met.

Meeting the DOL's condition costs little in capital. It costs a great deal in disclosure. Until a sponsor pays that price, the safe harbor stays shut. The question is who publishes first, if anyone.